Court Says Employers Cannot Discriminate Against LGBT Employees

Earlier this week, the Seventh Circuit Court of Appeals became the first and only federal court of appeals to find Title VII of the Civil Rights Act prohibits an employer from discriminating based on sexual orientation. Sitting en banc (which means, all 11 circuit judges considered the appeal), the court ruled in Hively v. Ivy Tech Community College, that Title VII’s protections against sex discrimination apply to discrimination based on sexual orientation. This ruling applies in three states: Indiana, Illinois and Wisconsin. The Hively decision comes on the heels of a Second Circuit Court of Appeals ruling that Title VII does not protect gay, lesbian and transgender individuals in the workplace. This split between circuit courts makes it likely the United States Supreme Court will take up this issue.

The plaintiff, Hively, was an openly lesbian, part-time adjunct professor at Ivy Tech Community College in South Bend, Indiana. After unsuccessfully applying for full-time teaching positions with the college six times over five-years, Ms. Hively’s part-time teaching contract was not renewed. She subsequently filed an EEOC complaint and then sued the college in federal district court alleging the college discriminated against her based on her sexual orientation in violation of Title VII. The college sought dismissal of the case, arguing sexual orientation is not a protected class under Title VII, and the district court agreed.

Hively appealed to the Seventh Circuit Court of Appeals. In an 8-3 decision, the Seventh Circuit reversed the district court’s ruling. The opinion’s author, Chief Judge Diane Wood, reasoned that any discrimination based on Ms. Hively’s sexual orientation would be grounded in her nonconformity with sex stereotypes. The court reasoned this discriminatory motive would be no different from the motive behind other unlawful discriminatory practices based on sex — such as refusing to hire women in traditionally male-dominated fields like fire departments, construction, or policing; or refusing to hire women with school-age children, married women, or women who refuse to wear makeup or jewelry. Like in those situations, in the case of discrimination based on sexual orientation, the court said, “discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account.” The court said, “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”

In this landmark decision, the Seventh Circuit made clear that discrimination grounded in sexual stereotypes is unlawful. Even though the United States Supreme Court may take a different view, the Hively case will be cited as a salient moment in the evolution of sex discrimination law in this country.

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